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[2017] ZALCJHB 501
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Sun International Limited and Another v SACCAWU and Others (J3455/17) [2017] ZALCJHB 501 (31 December 2017)

REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of interest to other
judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 3455/17
In
the matter between:
SUN
INTERNATIONAL LIMITED
First
applicant
AFRISUN
GAUTENG (PTY) LTD t/a
CARNIVAL
CITY
Second
applicant
and
SACCAWU
First
Respondent
INDIVIDUAL
RESPONDENTS LISTED
IN ANNEXURE “a”
Second
and further respondents
Heard
:
31 December 2017
Delivered
:
31 December 2017
(written
reasons provided on 9 February 2018).
Summary:
Urgent application to declare strike unprotected. Rule
nisi
granted.
judgment
STEENKAMP
J
Introduction
[1]
This urgent application was heard on New Year’s eve, 31
December 2017. I issued a rule
nisi
in the following terms:
“
2.
that a rule nisi do hereby issue calling upon the Respondents
to show
cause, if any, on 1 March 2018, why an Order should not be granted in
the following terms:
2.1
declaring the strike action of the Respondents in support of
their
demand and/or grievance concerning the introduction and application
of the upgraded version of the Kronos time and attendance
system to
be unprotected in terms of the
Labour Relations Act, 66 of 1995
, as
amended;
2.2
interdicting and restraining the Respondents from inciting,

encouraging, participating in, or otherwise acting in furtherance of
strike action in relation to the aforesaid demand and/or grievance;
2.3
ordering the Respondents to pay the costs of this application;
3.  that the
provisions of paragraphs 2.1 and 2.2 shall operate as independent
interim interdicts and orders, pending the return
date of this
application; and
4.  service of this
Order shall be effected as follows:
4.1
on the First Respondent, by serving a copy thereof by e-mail
on the
First Respondent’s offices; and
4.2
on the Second to Further Respondents, by delivering a copy
thereof to
a shop steward employed at the Second Applicant, by affixing copies
thereof to at least three prominent locations at
the entrance to the
Second Applicant’s premises and making further copies available
for collection by any of the Second to
Further Respondents.”
[2]
The applicant has asked for written reasons for the ruling. Although
I provided brief reasons for the ruling at the time of
hearing, they
were not recorded. Keeping in mind that only a rule
nisi
was
issued and that the matter will still be argued fully on the return
day, I reiterate in writing here the brief reasons I gave
on the day
of the hearing of the initial urgent application.
Background
facts
[3]
SACCAWU has given notice to call its members at Carnival City out on
strike at 16:00 on 31 December 2017, about three hours
hence. It
relies on a certificate of outcome issued by the CCMA on 31 September
2017.
[4]
The underlying dispute concerns a clocking system. Workers used to
clock in and out with a staff card. The system is known as
Kronos. In
April 2017 the applicants introduced a new biometric Kronos system.
SACCAWU alleged that it is a unilateral change to
terms and
conditions of employment. The applicants say it is merely a change in
work practices. And in any event, the initial dispute
was settled at
the CCMA on 11 September 2017. Despite that, a CCMA commissioner
issued a certificate on 21 September 2017 stating
that the dispute
remained unresolved.
Evaluation
/ Analysis
[5]
Mr
Van Zyl
, for the applicants, initially relied on seven
discrete arguments for the relief they seek. At the hearing he
abandoned three of
those. The matter was heard on that basis. And Mr
Molotsi
, for SACCAWU, did not take issue with urgency or short
notice (i.e. less than the 48 hours required by
s 64).
Mr
Van Zyl
persisted with these arguments:
5.1
The dispute does not concern a unilateral change to terms and
conditions of employment.
5.2
The certificate on which the union relies has no legal effect.
5.3
Even if there was a unilateral change (which is denied), the union
cannot strike and must rely
on other remedies.
5.4
The strike notice is defective.
Requirements
for interim interdict
[6]
The well-known requirements for an interim interdict are:
6.1
a
prima facie
right that may be open to some doubt;
6.2
a reasonable apprehension of irreparable harm to such right if the
interdict were not to be granted;
6.3
the balance of convenience favours the granting of the interdict; and
6.4
the absence
of any other adequate remedy.
[1]
[7]
As will be apparent from the reasons below, I am satisfied that the
applicants have made out a case for interim relief based
on a
prima
facie
right, though open to some doubt. They are faced with
imminent and irreparable harm in a few hours’ time and they
have no
adequate alternative remedy; and the balance of convenience
clearly favours them.
The
certificate of non-resolution
[8]
The union relies on the certificate of non-resolution as the basis
for its strike action. But the underlying dispute has been
resolved.
[9]
As will appear below, I agree with Mr
Van Zyl
that, on the
evidence before me at this stage, the dispute regarding the
introduction and application of the upgraded Kronos system
does not
amount to a unilateral change in terms and conditions of employment
and, therefore, the employees are not entitled to
embark on strike
action to enforce demands in this regard; and in any event, the
dispute has been finally resolved by means of
a settlement agreement
constituting a collective agreement.
Is
the dispute about a unilateral change to terms and conditions of
employment?
[10]
Mr
Van Zyl
accepted that the union referred a dispute to the
CCMA concerning its contention that a unilateral change to terms and
conditions
of employment has occurred, and that a certificate of
non-resolution was issued in those terms.  But, he argued, the
allegation
that a unilateral change to terms and conditions of
employment has occurred is not borne out by the evidence.
[11]
The
distinction between changes to terms and conditions of employment, as
opposed to mere work practices, has enjoyed the attention
of this
Court on several occasions.  In
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU and Others
[2]
the Court  analysed the employer’s proposed introduction
of a new shift schedule within the following framework:
‘
[36]
… The question remains whether it [the new shift schedule]
amounts
to a unilateral change to terms and conditions of
employment.  If the shift schedules comprise terms of
employment, they could
only be changed by agreement; and if it were
to be changed unilaterally, the unions could embark on a protected
strike.
[37]
In
SA Police Union v National Commissioner of the SA Police
Services
[2006] 1 BLLR 42
(LC) this court dealt with a very
similar question.  In that case, SAPS implemented an 8 hour
shifty system in the place of
the prevailing 12 hour system.  The
trade union objected on the basis that it was a unilateral change to
terms and conditions
of employment.  Murphy AJ commented as
follows after having regard to the relevant collective agreement and
contracts of employment:
‘
In short, it was
not a term of the contract of employment that employees working 12
hour shifts would always be entitled to do so.
Without express,
implied or tacit contractual rights to such effect, the employees do
not have vested right to preserve their working
times unchanged for
all times.  The alternation of shifts does not result in the
employees being required to perform a different
job thereby entitling
them to claim a material breach or alteration in the supposition of
the contract.  The change in timing
does not amount to a change
in the nature of the job. The shift system was accordingly merely a
work practice not a term of employment.
…
[40]
In the case before me, SAMWU has not been able to point to any term

contained in a collective agreement or in the bus drivers’
contracts of employment that accords them a vested right to a

specific shift schedule.  They have vested rights in relation to
maximum working hours; and the right to pick shifts according
to
seniority.  These rights have not been changed or infringed.
Conclusion
[41]
The changes implemented by Metrobus comprise no more than a change
in
work practice.  It does not amount to a unilateral change in the
bus drivers’ terms and conditions of employment.

Therefore, the trade unions representing the drivers do not have the
right to strike over a unilateral change to terms and conditions
of
employment in terms of
section 64(4)
of the LRA.’
[12]
In
Ram Transport SA (Pty) Ltd v SATAWU and Another
[2011] JOL
26805
(LC) Van Niekerk J cited with approval and applied the approach
in
Johannesburg Metropolitan Bus Services supra
.  In
distinguishing between a work practice and a term of employment the
court remarked as follows:
‘
This distinction
has its roots in the principle that employees do not have a vested
right to preserve their conditions of employment
completely unchanged
from the moment they are employed.  In
A Mauchle (Pty) Ltd
t/a Precision Tools v NUMSA
[1995] 4 BLLR 11
(LAC) the court
distinguished between ‘terms of employment’ on the one
hand and ‘work practices’ on the
other, the latter being
subject to the employer’s prerogative and its introduction not
constituting a unilateral change.’
[13]
In similar vein, the Labour Court (per Gush J) reiterated the
principle as follows in
Apollo Tyres South Africa (Pty) Ltd v
National Union of Metalworkers of South Africa (‘NUMSA’)
and Others
[2012] 6 BLLR 544
(LC):
‘
It is clear that
unless specifically entrenched contractually, the right to regulate
shift patterns is the prerogative of the employer.’
[14]
On the evidence before me at this stage there is no suggestion that
the parties have contracted on a basis that serves to fetter
the
employer’s right to implement the work practice related to the
upgrading of the Kronos system, as more fully set out
in the founding
affidavit of Verna Robson.
The
certificate and alternative remedies
[15]
Mr
Van
Zyl
referred to
Independent
Commercial Hospitality and Allied Workers Union v CCMA,  Mgubasi
NO and Suid-Kaap Stene Electroplating and Powercoating
CC
[3]
;
in which the court held that employees faced with a true unilateral
change to terms and conditions of employment --  which,
on the
papers before me, is not the case here --  in any case only have
available the following remedies:
15.1   to
strike, for the period of conciliation, without complying with the
normal statutory conciliation requirements
and without giving the
normal 48 hours’ notification of intended strike action;
15.2   to bring
an application for an interdict seeking compliance with the notice to
restore the
status quo
(s158(1)(b)
read with
s64(5)
of the
LRA); and
15.3   to
resist such change and to tender their employment on their existing
terms and conditions of employment.
[16]
Even if the present dispute did comprise a change in terms and
conditions of employment and not a change in workplace practice,
then
the respondents are
prima facie
prohibited from relying on the
certificate of non-resolution in order to embark on a protected
strike.
The
settlement agreement
[17]
It also
appears to me
prima
facie
that the intended strike is unprotected  because, in terms of
s65(3)(a)(i)
of the LRA, the parties are bound by the collective
agreement (the settlement agreement at the CCMA) that regulates the
issue in
dispute.
[4]
The
strike notice
In
SA Airways (Pty) Ltd v SATAWU
[2010]
3 BLLR 321
(LC), the court said:
‘
The same purposive
approach adopted by the Labour Appeal Court requires that a strike
notice should sufficiently clearly articulate
a union’s demands
so as to place the employer in a position where it can take an
informed decision to resist or accede to
those demands.  In
other words, the employer must be in a position to know with some
degree of precision which demands a union
and its members intend
pursuing through strike action, and what is required of it to meet
those demands.’
[18]
And with reference to the constitutional court judgment in
South
African Transport and Allied Workers Union and Others v Moloto NO and
Another
[2012] 12 BLLR 1193
(CC), the labour court, subsequently,
in
National Union of Food, Beverage, Wine, Spirits and Allied
Workers and Others v Universal Product Network (Pty) Ltd
(2016)
37
ILJ
476 (LC);
[2016] 4 BLLR 408
(LC); held, in line with
the above approach, that the principle to be extracted is that a
strike notice had to place the employer
in a position reasonably to
know which demands a union and its members intended to pursue through
strike action and that it had,
therefore, to meet, to avoid the
prospect of industrial action.
[19]
In this case the union has not articulated any demands in its strike
notice. It is impossible for the employer to consider
its position as
it does not know what is required in order to either avoid the
strike,  to meet the relevant demands or to
minimise the risks
attached to the strike.
Conclusion
[20]
It is for these reasons that I granted the rule
nisi
.
_______________________
Steenkamp
J
APPEARANCES
APPLICANTS:
Brian
van Zyl
Instructed
by Van Zyl Rudd Inc, Port Elizabeth.
RESPONDENTS:
S Molotsi.
[1]
Setlogelo v Setlogelo
1914 AD 221
at 227; Webster v Mitchell 1948
(1) SA 1186 (W).
[2]
[2011] 3 BLLR 231
(LC) par 36.
[3]
(2015) 36 ILJ 3086 (LC); [2015] 9 BLLR 958 (LC).
[4]
Samancor
Ltd v National Union of Metalworkers of SA and Others
(2000) 21
ILJ
2305 (LC);
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
SA and Another
(2010) 31
ILJ
2854 (LAC).